UNION OF INDIA Vs. DEBASHISH GHOSH

JUDGEMENT

(1.) This is an appeal by Union of India against the judgment of the Division Bench of the Calcutta High Court whereby the Calcutta High Court allowed the writ appeal filed by the respondent herein. The respondent herein was serving as a constable in the Border Security Force, BSF for short, having joined the service in the year 1988. In his checkered career, on seven occasions, he went on leave and never reported back in time. On first two occasions, he was merely warned but thereafter on three occasions he was imprisoned for 28 days under the BSF Act. He did not mend his ways and remained absent for substantial period on seventh occasion. He was, therefore, charge-sheeted for the offence under Section 19 of the BSF Act. Summary Court was formulated, evidence was collected and ultimately he was ordered to be dismissed. That dismissal was challenged by him by filing a writ petition. The learned single Judge of the Calcutta High Court dismissed his writ petition. Thereafter, he filed an appeal in which he succeeded. That is how the matter has come before us.

(2.) The Division Bench has taken a view that the punishment of dismissal awarded to the respondent could not have been awarded reading Sections 19, 48(c) and 49 of the BSF Act. It is on that short ground that the punishment of dismissal has been set aside by the High Court in the impugned judgment. We must point out at this stage that after allowing the appeal, his reinstatement has been ordered, though the High Court has kept it open for the respondent Union of India to take appropriate action in accordance with the provisions of the Act and law as indicated.

(3.) We have carefully considered the provisions as well as the facts which have been brought before us by the learned Counsel appearing on behalf of the Union of India. He points out that as per Section 19, the punishment for the offence covered under Clause (c) thereof would ordinarily have been three years. Learned Counsel points out to the particular portion of the Section which are as under: